Tuesday, May 08, 2007

kiddush hashem under duress

An interesting Rambam pointed out by R’ Friedman this past Shabbos: In Hil Yesodei haTorah (5:6) the Rambam writes that even where the mitzvah of kiddush Hashem obligates a Jew to give his life rather than violate one of the three cardinal sins of giluy arayot, murder, or idolatry, there is no punishment if one fails to surrender one’s life. The Rambam explains that the sin in all these cases of duress is not done with any willful volition and hence the exemption of ones applies. The Rambam writes shortly thereafter (halacha 9) that this same rule applies to a case where one’s life is in danger from mortal illness – one must surrender one’s life rather than violate any of the three cardinal sins. However, here the Rambam writes that if one violates any of these prohibitions, one is liable for punishment. Question: why does the same exemption of duress (ones) not apply to this case where a prohibition is violated to escape mortal illness? (If you are stumped, start with the Ohr Sameiach for an answer).

8 comments:

Rabbi Zucker, in his shiur on Kidush Hashem, answers this question in the course of answering another question: the Rambam writes that Bnei Noach are not obligated to keep their mitzvos in situations of oneis (Hilchos Melachim 10:1), yet, in the next halacha he states that they are prohibited from violating their mitzvos in a situation of life-threatening illness (pikuach nefesh d’chuli) – but isn’t pikuach nefesh d’chuli) a situation of oneis?

“In order to answer this question,” Rabbi Zucker writes, “see Hilchos Yesodei ha’Torah 5:4, that if a person transgresses when he should have allowed himself to be killed, Beis Din does not punish him because it was a situation of oneis. However, in halacha 6 the Rambam writes that if, in a life-threatening illness, a person transgresses when he should have allowed himself to be killed, he is punished by Beis Din with the appropriate punishment.”

Rabbi Zucker answers both questions: “The concept of oneis is not defined by the intent of the transgressor alone; rather, we demand an essential quality of oneis in the situation itself. Since, in the case of a life-threatening illness, there is no absolute certainty in the situation itself that he will die if he doesn’t transgress, then this situation is not defined as oneis. With this, it makes sense that a Ben Noach is not obligated in his mitzvos in situations of oneis, even though he is prohibited to transgress in situations of life-threatening illness.”

>>>Since, in the case of a life-threatening illness, there is no absolute certainty in the situation itself that he will die

Says who? The case could very well be (and I would, in fact, a priori assume this is the case, which is why I wrote 'mortal illness') that the doctors say there is no hope unless one of these aveiros is violated, e.g. a person needs a transplant only obtainable at the cost of another life. I don't see that as being less certain than someone holding a gun to a person's head and threatening to pull the trigger unless they kill someone else.

There is a fundamental difference between a case of piquah nefesh and a case of oness.

In the case of oness, there is another will involved - the will of the anass who is attempting to force the Jew to transgress. What one is essentially doing is submitting to an external force that is compelling him to act. So, although he failed to be meqadesh Hashem, such a person did not willingly sin. He allowed himself to be subordinated by the wicked anass. We can criticize him for not being Meqadesh Hashem, but we can't say that he willingly transgressed.

By contrast, when an individual is sick, there is no "second will" involved in his decision to sin. He is choosing to utilize a sinful action as a remedy. Therefore, even though the concerns he has are serious ones, his behavior is an expression of free choice on his part. This makes him responsible for it.

I was thinking perhaps one could answer based on the din of mitasek b'chalavim v'arayot chayav she'kein ne'hene. Perhaps even if you are anus, being cured is more of a direct benefit than merely escaping death, and you are chayav for that benefit. Not sure that explanation will work well for shefichut damim.

Just to add to the discussion (based on a concept developed by RYBS), if you read the Rambam carefully only the first case where there is another person compelling the Jew to do the avairah is referred to by the Rambam as kidush or chilul Hashem. The later case in halacha 9 is not a case of kiddush or chilul Hashem because there is no one compelling the Jew to do the avairah, rather it is only a din of yehareg ve-al yaavor. It is an important point that not every case of kidush and chilul Hashem is yehareg ve-al yaavor and not every case of yehareg ve-al yaavor is kiddush or chilul Hashem. The Rav explained based on the Rambam in sefer ha-mitzvos lo taaseh 9, that kiddush Hashem is not doing what the me'anes wants -- hence with illness it does not come into play. He uses this to answer tosfos in sanhedrin about being oved me-ahavah me-yirah- ve-ein kan mekomo.

Just commented because of the heading of your post referring kiddush Hashem under duress -- but one of the cases involved is not a case of kiddush or chilul Hashem.